White House Counsel Announces Syria Strike Would Not Violate International Law, But Doesn’t Explain How

by Julian Ku

In the UK, the government released a brief note which described the legal theory justifying a strike on Syria. The note may have had flaws, but it certainly offered a basis to evaluate the UK government’s view of international law. In the United States, the equivalent appears to be conversations between the White House Counsel and Charlie Savage of the NYT

Ms. Ruemmler said that while an attack on Syria “may not fit under a traditionally recognized legal basis under international law,” the administration believed that given the novel factors and circumstances, such an action would nevertheless be “justified and legitimate under international law” and so not prohibited.

Come on, Charlie, you have got to push her to elaborate! Why would it be “justified and legitimate”? Is it illegal but legitimate, or is it actually legal under a theory yet to be revealed by the administration? Has the State Department been asked for an opinion?

18 Responses

Actually I think the WH has been pretty consistent in the past week in pursuing the “illegal but legitimate” theory. Ruemmler’s quote seems quite consistent with that idea, and with the WH Deputy National Security Adviser’s interview on this point on Chris Hayes’ show last week: http://video.msnbc.msn.com/all-in-/51362794#52921011.

She is absolutely correct re: “novel factors and circumstnces,” such as those that we have stressed in responses to posts here but others seem to ignore (e.g., that the SNC has substantial recognition as the legitimate representative of the Syrian people, that there is an ongoing belligerency, etc.). There are seven possible bases for a claim under international law, although some would involve future authorizations from either NATO or the League of Arab states — which may be happening in the near future, who knows). And “justified” under international law does not in any way suggest “illegal” under international law.Yet, Julian has been rightly pressing here for some sort of white paper or formal statement.

9.09.2013
at 10:41 am EST Jordan

I guess I read it that way, Kevin, especially in a press quote (not a formal statement), and especially in light of the other statements they’ve made on the topic. In Blinken’s interview, which I linked to, he said, for example: “As a matter of international law, you’re correct that either the Security Council needs to act or you need to be acting in self defense or in the defense of a partner country. Here what we believe is we have a very legitimate basis . . . to enforce a profound international norm.”

I asked Kathy Ruemmler if the administration’s position was that this was illegal under international law but legitimate, and she said no, they believe it would be legal under international law because of the constellation of factors presented by the situation. That is why the article explicitly cites her as saying it would be lawful under international law, and then quotes her as saying “justified and legitimate under intl law” and so not prohibited. I’m not sure how you are reading it otherwise, Deborah.
It appears to me they are going down the same unsatisfyingly murky “factors”-without-further-explanation route that the Clinton administration used in Kosovo. I know Blinken’s off the cuff comments to MSNBC created an “illegal but legit” bubble, but he’s a policy guy, not a lawyer, so probably just mangled the talking points.

9.09.2013
at 5:48 pm EST Charlie Savage

I’ll just say that Jack Goldsmith rightly calls these murky “Kosovo” constellation of factors “mumbo jumbo”, which may be contributing to the confusion http://t.co/yBjc3nunAb

Thanks so much for the helpful response, Charlie. I guess I’m now persuaded enough to conclude their position is unnecessarily and strangely confused. Rereading your article, it seems to be both – contradictory – positions are attributed to Ruemmler. You write: “Kathryn Ruemmler, the White House counsel, said the president believed a strike would be lawful, but in international law and domestic law, even if neither the Security Council nor Congress approved it.” A few paragraphs later, you quote Ruemmler as saying that an attack on Syria “may not fit under a traditionally recognized legal basis under international law” but that they thought the action would be “justified and legitimate.” On my first reading of it I gave more credit to the latter statement because it was in quotes (rather than described) and seemed quite deliberately nuanced (calling the action “justified and legitimate” but not legal). But it would be easy enough for the administration to clarify this. And they should.

I’m not sure why the nature of the claim was ever confusing. The key quote is “justified and legitimate under international law,” not merely “justified and legitimate.” The suggestion was that it was perhaps not traditional, but still passed muster.
There are a range of answers so unlikely to be given by government lawyers that they almost qualify for some kind of interpretive canon — one should assume what is not meant or at least not fairly representative. These include anything to the effect of “illegal and illegitimate,” “legal but illegitimate,” and even the venerable (extra-governmental) “legitimate but illegal.”
In this kind of situation, where (as the White House Counsel said) it is hard to invoke a traditional category, there are several more likely claims. First, one can simply mutter “it’s legal.” Second, one can claim legality due to articulated factors that may not be complete or prioritized or otherwise generalizable. Third, one can claim legality due to articulated factors composed into a test that can be evaluated for integrity and compatibility with precedent (and used in the future, if it seems to pass muster). The second kind of claim is probably the most common, particularly in the early going, and sounds like what we have here. One can only clarify it so much before it evolves into the third kind of claim, which has some tactical downsides, however much those of us on the sidelines may desire it. Conversely, if it is too skeletal or unpersuasive, it will sound more like the first category of claim, or even worse.
Anyway, I read the quotes as very clearly attempting the second kind of claim, and not at all of the “illegal but legitimate” ilk.

9.09.2013
at 10:26 pm EST EdS

The White House knows that its legal theory is not worth explaining because as mere mortals we are incapable of comprehending its sheer perfection.

9.09.2013
at 11:35 pm EST Zach

I’m not a lawyer, but it has been explained to me in the following way. This for the Iraq invasion, but it could just as well apply to Syria, or Kosovo, et al:

Under Chapter VII of the UN Charter, the Security Council’s job is to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and authorize or undertake such steps as it deems necessary “to maintain or restore international peace and security.”
Technically, then, any given military action isn’t a threat to international peace and security, unless and until the UNSC rules it to be.

Theoretically, under the Charter, UN member states are supposed to try to resolve disputes by means other than armed force, but that notion has been more honored in the breach than in the observance pretty much since the UN was founded in 1945.

9.10.2013
at 9:26 am EST Liz

Wow.
Well, that didn’t work well. Sorry, wish i could edit.

9.10.2013
at 9:27 am EST Liz

As noted, there are at least seven possible claims for legality, although a few would depend on consent of foreign countries (such as collective self-defense with Turkey in response to armed attacks that began last year, NATO authorization (perhaps unlikely), League of Arab States authorization (may not be so unlikely given the expulsion of Syria, but still unprecedented for the LAS). Too many ignore the special circumstances posed with respect to ongoing consent of the SNC (an independent basis) and a belligerent in a civil war (the SNC, another independent basis but one that results in war against the other belligrent, i.e., the Assad regime) and other complexities that the White House may have in mind.
Despite what Kerry just said a few minutes ago, under any of the seven options a U.S. use of armed force would be an act of “war” however short that “war” might be (like the 30 min. war with Libya in 1986).

9.10.2013
at 11:03 am EST Jordan

Liz: that’s actually a very “technical” point for a non-lawyer to make, but the phrase quoted relates to a Security Council competence and not a permission to use force if the SC fails to act. As others suggested here, it may well be a competence that is not exclusive but that is shared in some manner with the General Assembly, given the use of a Uniting for Peace resolution during the Korean War (which technically has not ended) and its invokation by the GA some ten times since. A UPR re: Syria could occur in the future and constitute one of the seven claims for permissiiblity.
I like non-lawyer questions that can allow lawyers to think more realistically and creatively in terms of various legal policies at stake, or at least to realize that there are several complexities involved with respect to context and the express text and purposes of the United Nations Charter (e.g., re: the preamble, article 1, article 2(4), article 51, articles 52-53).

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